WASHINGTON — LAWYERS on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools.
What accounts for the gap? The answer, the study says, is that judicial selection processes are affected by politics.
Judges are, of course, almost without exception lawyers. If judges reflected the pool from which they were selected based on politically neutral grounds like technical skill and temperament, the bench might be expected to tilt left.
But something else is going on.
“Politics plays a really significant role in shaping our judicial system,” said Maya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology. She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.
Eric A. Posner, a law professor at the University of Chicago, said the paper might have drawn the wrong conclusion from the right data. “The authors argue that a court is politicized if the judges deviate from the ideology of the underlying ideological distribution of attorneys,” he said. “Maybe.”
But an equally powerful case could be made, he said, for viewing courts as politicized if they failed to reflect the ideology of people generally. “On this view,” Professor Posner continued, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”
Either way, said Tracey George, a law professor and political scientist at Vanderbilt University, the study explored a distinctive feature of American justice. Foreign legal systems tend to be homogeneous, she said, with lawyers and judges closely aligned ideologically.